GWEN IFILL: The states versus Congress: Who gets the last word? The Supreme Court sided today with the states. It threw out a key provision of the 1994 Violence Against Women Act, which allowed rape victims to sue their attackers in federal court. In a 5-4 decision, the court held that Congress overreached.
We get more on today's court action from NewsHour regular Jan Crawford Greenburg, national legal affairs correspondent with the "Chicago Tribune." Jan, when you were here in January, we talked about the arguments in this case. You said even then that the justices seemed skeptical about this appeal and that's proved to be true.
JAN CRAWFORD GREENBURG: That's right. In fact, several of the lawyers that I spoke with today said that they weren't really surprised by the ruling because the Justices at argument seemed so skeptical of the law.
Now, sometimes you cannot obviously predict how they're going to go after the argument, but in that argument, even the ones that the supporters, the supporters of the law, had hoped would be on their side made clear that they were dubious of Congress's authority in this area.
Justice O'Connor, for example, said if Congress can pass a law here, then they could seemingly get involved in a host of other areas that traditionally the states have handled, like child support and alimony, and some of that language was in the opinion today that was written by chief Justice William Rehnquist.
GWEN IFILL: Tell us some more about that opinion and exactly what points did he make?
JAN CRAWFORD GREENBURG: Well, today's ruling I think has to be seen in context of a 1995 ruling. So let me just mention that one first. That one is called United States Versus Lopez. In that case, the court for the first time in some 60 years said that Congress went too far when it passed this law that would have made it illegal, a federal crime, for someone to carry a gun 1,000 feet I think within a school.
At the time when that ruling came down, legal scholars said it was just and passed a law that exceeded its authority, in this case, to regulate interstate commerce. But today the court's ruling made clear that it meant what it said in that 1995 case and that no longer is Congress going to just get a pass when it points to a law and says we can pass this law because the Constitution gives us the authority to do so under our ability to regulate interstate commerce.
GWEN IFILL: No matter how politically popular the subject matter may be.
JAN CRAWFORD GREENBURG: That's right. This was certainly a popular law. Many states said that they supported it, but the Chief Justice in his majority opinion closely divided like all of these states' rights ruling are by a vote of 5-4 stressed that every law Congress passed has to stem from some power that has been given in the Constitution.
And for them... for Congress to say that the law comes from its ability to regulate interstate commerce, it must be able to show that the activity at issue substantially affects interstate commerce. There are many things that the court is going to look at in evaluating whether it substantially affects interstate commerce such as how close the impact is on interstate commerce, whether or not the activity is economic in nature, obviously violence, the court has said, may not be.
So that's significant because for decades people have assumed that pretty much anything goes, and Congress can regulate a lot of things under its ability to regulate interstate commerce.
GWEN IFILL: You mentioned that this was another very narrow 5-4 decisions. Justice Souter was the one who wrote the dissent. What was his point in supporting that appeal?
JAN CRAWFORD GREENBURG: He said that this case was different than the 1995 case. In fact, after that case some of the lower court ruling said that that wasn't this grand change in the court's thinking. In fact, it was just like a judicial slap on the wrist and Congress just needed to make clear why it was regulating interstate commerce. Souter said Congress did that when it passed the Violence Against Women Act. It had mountains of evidence that domestic violence and gender-motivated violence affected interstate commerce, three to five billion lost every year in productivity. He listed a long list of the impact that violence would have on the national economy. And then he suggested that actually Lopez was wrong.
The court didn't obviously get into that and these five Justices seemed to strongly believe that Congress has a very distinct role to play, the states have a very distinct role to play. That's important in the founders' vision of our system, that to preserve, as the court said today, to preserve our fundamental liberties, we need this and the founders saw this, to have these divided authorities where congress had a role and where the states had a role.
GWEN IFILL: The court also rejected the notion that Congress needed to step in because this was a gender-motivated crime that we were talking about and that Congress had to speak to this sort of issue. It rejected that as well.
JAN CRAWFORD GREENBURG: Right. We've been talking about one of the ways that Congress can get its power to pass laws under the commerce clause as I mentioned. There's another way that Congress can pass laws is under its authority to enforce the 14th Amendment which prohibits states from depriving people of life, liberty or property without due process or equal protection of the laws.
Today the court said Congress can't fit this law into that area either because that authority only goes to state activity. Here this was between two private individuals. So Congress couldn't pass a law regulating private conduct.
GWEN IFILL: People have been watching Sandra Day O'Connor on this one. They thought perhaps that on a case that involved gender-specific crimes she might be more likely to flip to the other side.
JAN CRAWFORD GREENBURG: Right. Because she has been with the five Justices in the majority on these states' rights rulings and they had pinned their hopes on her. But I think after the argument, the lawyer for Christy Bronkala, her trial lawyer told me today that her heart just sunk because O'Connor's questions at the argument were very skeptical and certainly she's very sensitive to gender issues but there is a remedy for women who have been subjected to gender-motivated violence and they can turn to the state court.
So I think some people have suggested that that weighed on O'Connor's thinking that women weren't being shut out of the courthouse; they just couldn't go into federal court for damages in this situation.
GWEN IFILL: Briefly, was either side surprised by the outcome today?
JAN CRAWFORD GREENBURG: I don't think so, not after the arguments.
GWEN IFILL: Jan Crawford Greenburg, thank you very much.